July 10, 2019
By: Anne Marie Ellis
I hope you all had a safe and enjoyable 4th of July. Nothing says celebration like Proposition 65 updates for the summer!
My review of recently filed notices of violation affirms that many of the same noticing parties and counsel are still on the hunt for low dollar consumer items that contain phthalates. There has been an interesting development. Noticing parties are now targeting the packaging as opposed to the product itself. This is a good opportunity for you to make sure you know what your products are packaged in, and/or to make sure your packaging supplier puts the appropriate warning label on the packaging. It would not be surprising to see other packaging materials such as boxes, packing bubbles or packing peanuts targeted next. The following chart lists some of the most recent filings, products and chemicals subject to notices of violation.
| Noticing Party |
Retailer/Manufacturer |
Item |
Chemical |
| Ema Bell |
Target |
Passport case and luggage tag set |
DINP |
| Anthony Ferreiro |
Target |
Defining cream |
DEA |
| Ema Bell |
Target |
Clutch |
Di(2-ethylhexyl) phthalate |
| Gabriel Espinosa |
Target |
Ipad holder |
Di(2-ethylhexyl) phthalate |
| Kim Embry |
Ralphs |
Bakery bites |
Acrylamide |
| Kim Embry |
Amazon |
Salted nuts, chocolate covered pretzels, roasted and salted almonds |
Acrylamide |
| Kim Embry |
Harbor Freight Tools |
Oil resistant gloves |
DEHP |
| Patricia Balabbo |
Ross Stores |
Exposure to the packaging of bedding |
Di(2-ethylhexyl) phthalate |
| CA Citizen Protection Group, LLC |
Bed Bath and Beyond |
Exposure to the packaging of bedding |
Di(2-ethylhexyl) phthalate |
| Ecological Alliance |
Bass Pro |
Channel nets, fish scales |
Di(2-ethylhexyl) phthalate |
| Ecological Alliance |
Target |
Exposure to plastic carrying pouch of saucer chairs |
Di(2-ethylhexyl) phthalate |
| Gabriel Espinosa |
The Container Store |
Exposure to clear plastic pocket of hanging organizer |
Di(2-ethylhexyl) phthalate |
OEHHA has also put out an executive summary for 2018 showing the number of settlements, total settlement payments and attorneys’ fees and costs earned by each noticing party and firm in this arena. For all Prop. 65 noticing parties, there were 829 settlements, over $35M in total settlement payments and $27M in attorneys’ fees and costs. Breaking it down further, the Brodsky & Smith firm combined plaintiffs have settled 147 cases with over $2.9M in settlement payments and over $2.6M paid in attorneys’ fees and costs. The Chanler group’s combined plaintiffs have settled 136 cases with over $3.5M in settlement payments and over $3.09M in attorneys’ fees. The Center for Environmental Health has settled 56 matters with $7.3M in settlement payments and a staggering $5.1M in attorneys’ fees and costs.
In news specific to the automotive industry, the Safer Consumer Products petitioned the Department of Toxic Substances (“DTSC”) requesting that the agency designate zinc in tires as a priority product. The tire industry submitted arguments why DTSC should not grant the petition. The industry has been working with state agencies in attempting to document the extent to which zinc from tires enters waterways. The industry conceded that there is some zinc entering water sources. but claims that research shows zinc is not “bioavailable” or that there is very little adverse impact on aquatic resources. The decision is now with the DTSC.
In news specific to the personal care products industry, the DTSC is looking at possible actions to limit the production of 1,4-Dioxane during the manufacture of personal care and cleaning products. The Department is now seeking input from the public on whether to name products with this chemical as a “priority product.”
Recently, notices of violation were filed against multiple manufacturers and retailers of talc, alleging that it contains arsenic, chromium, lead and lead compounds and silica, crystalline. Since 1990, talc contain astbestiform fibers has been listed by OEHHA as cancer causing. We are keeping an eye out for any interest from the Attorney General on this issue.
Finally, for the food and supplement industry, OEHHA is proposing changes to Section 25821 concerning the averaging of concentrations of reproductive toxicants in food products and determining the average use of a consumer product for purposes of calculating exposures to listed reproductive toxicants. OEHHA is not proceeding with the amendment to Section 25821(c)(2) which would have established the arithmetic mean as a default in calculating exposure. There is a comment period that will close on July 22nd.
Thank you for reading and please reach out to me if you have any Prop. 65 issues or questions!
Anne Marie Ellis is a Senior Counsel in the Firm’s Orange County office. She focuses her practice on product liability, commercial litigation, regulatory compliance and client counseling. She has significant experience defending all types of consumer products including motor vehicles, motorcycles, off-road vehicles, sporting goods equipment, power tools, exercise equipment, restaurants and amusement park venues. She can be reached at (949) 224-6223 or [email protected]
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